Unlawful mental health detention – who is to blame?

20 January 2011 by

TTM (By his Litigation Friend TM) v London Borough of Hackney, East London NHS Foundation Trust; Secretary of State for Health –  Read judgment

The Court of Appeal has ruled that the local authority, but not the detaining hospital, was liable to pay compensation to a person who had been unlawfully detained under Section 3 of the Mental Health Act  1983.  The case provides important guidance on the liability of mental health and medical professionals in the difficult area of detaining patients, as well as the ability to recover damages where a claimant is unlawfully detained.

The Court held that the patient’s detention had been unlawful from the start when the approved mental health professional [‘AMHP’] erred in whether the patient’s relative objected to admission.  The local authority responsible for the AMHP could not rely on the Section 139(1)of the Mental Health Act 1983 [‘the Act’] statutory protection from civil liability, which had to be read down by virtue of Section 3 of the Human Rights Act 1998 to give effect to the patient’s right to liberty under Article 5 of the ECHR.

The hospital had acted lawfully in detaining TTM, however, as it had the power under Section 6(3) of the Act to detain a patient on the basis of a Section 3 application that appeared to be duly made.   The NHS Hospital Trust was represented Neil Garnham QC and Sydney Chawatama of these Chambers.

The Court further ruled that in the circumstances there had been no breach of Section 12 (2) of the Act when neither of the required two medical practitioners recommending admission had previous acquaintance with the patient.

Background Facts

In December 2008 TTM had been lawfully admitted under Section 3 of the Act to Homerton Hospital, run by the Respondent NHS Foundation Trust.  Subsequently, TTM’s nearest relative TM exercised his power under Section 23 of the Act to give notice to require TTM’s release by 22 January 2009.

When the notice to discharge was served, the Hospital’s intention had been to bar the notice under Section 25 but the relevant medical practitioner did not serve the report stating that TTM would be likely to act in a manner dangerous to other persons or to himself within the requisite 72 hours after notice.  The treating medical practitioner then temporarily detained TTM under Section 5(2) but his colleague disagreed whether sectioning was required.

On his subsequent release from formal detention,  it was agreed that TTM should remain informally in hospital.

Whilst voluntarily remaining in hospital, TTM refused to take any medication and his treating clinicians also differed on whether medication was necessary.  Consequently, two independent psychiatrists assessed TTM and recommended admission under Section 3 of the Act for the safety of TTM and others.

On 30 January 2009 the AMHP made a written application for admission on the basis of the psychiatrists’ opinion. Under Section 11(3) of the Act such an application requires consultation with the nearest relative.  A more complicated application procedure would be required if the nearest relative, TM, were to object to the application.

The AMHP spoke with TM three times before making the application.  Initially, it was clear that TM objected to TTM’s admission but by the third call the AMHP honestly but mistakenly concluded TM no longer objected.    By the time TM rang to clarify his objections the application was already made, TM could not longer prevent admission and his power to discharge TTM was restricted by Section 25 of the Act.

TTM applied for a writ of habeas corpus.

Grant of Habeas Corpus

On 11 February 2009 Mr Justice Burton granted TTM’s application for a writ of habeas corpus on the grounds that the AMHP did not act reasonably in concluding that there was no objection from the nearest relative, TM.  Mr Justice Burton held that nothing had occurred that should have led to the conclusion that TM had changed his mind:

I am satisfied that … without any criticism of mala fides on the part of [the AMHP] … this Section 3 admission was unlawful because, although [the AMHP] genuinely believed that there had been a change of mind by the nearest relative, it was not reasonable of her so to have believed … ” [48]

Judical Review Proceedings

On the first day of the habeas corpus hearing, TTM also issued a claim by way of judicial review for (a) a declaration that his admission under Section 3 was unlawful, (b) damages under Article 5(5) and 8 of the ECHR (c) leave under Section 139(2) to pursue a damages claim against the local authority, and/or (d) if his claim was barred by the Act – a declaration that Sections 139(1) and 6(3) of the Act were incompatible with Article 5 of the ECHR.

At first instance, Mr Justice Collins dismissed TTM’s claim holding that his detention had not been unlawful until such time as the court declared the decision-making process to have been defective – applying R v Managers of South Western Hospital ex p M [1993] QB 683 and R v Central London County Court ex p London [1999] QB 1260 and distinguishing Re S-C (Mental Patient Habeas Corpus) [1996] QB 599 as it was not directly concerned with that question.

Further, the Hospital Trust acted lawfully as it was authorised to detain TTM under Section 6(3)  – it was entitled to rely on the AMHP’s application without further enquiry as to the objections of the nearest relative.

In the circumstances there had been no breach of Section 12 (2) when the psychiatrists assessing TTM for admission had no acquaintance with him. The section requires that:

one shall be given by a practitioner approved for the purposes of this section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder; and unless that practitioner has previous acquaintance with the patient, the other such recommendation shall, if practicable, be given by a registered medical practitioner who has such previous acquaintance” [emphasis added]

“Practicable” must be interpreted in its context and should not be equated with “possible”.  Given the division of medical opinion in the treating clinicians, it was both reasonable and a proper exercise of judgment as to what was in TTM’s best interests to use medical practitioners who came to TTM’s case afresh.

Mr Justice Collins declined leave under Section 139 (2) as compensation could only follow if there had been negligence or bad faith.  Bad faith was not alleged and on the facts found by Mr Justice Burton, Mr Justice Collins found there was no reasonable prospect of success of the claimant proving negligence.

The judge held that there was no breach of Article 5 of the ECHR where detention was lawful in domestic law and consequently no claim for compensation under Article 5.  In the circumstances there was no incompatibility in either Section 139 or Section 6 (3).

The Appeal

Permission to appeal was granted by Mr Justice Collins in respect of whether:

(1) detention was unlawful ab initio such that compensation was payable under Article 5(5); and

(2) in the circumstances there had been a breach of Section 12(2) of the Mental Health Act.

Unlawful Detention

The Court of Appeal held that the Hospital Trust acted lawfully by virtue of section 6(3) which effectivley empowers hospital managers to admit a patient where his admission appears to have been duly made.  Whether this amounted to a power to detain or a defence against any claim for unlawful detention was described as the “opposite sides of the same coin” [38].

The Court rejected, however, the Respondent Local Authority’s and the Health Secretary’s argument that as the Hospital Trust had detained TTM lawfully he was not unlawfully deprived of his liberty by the conduct of the AMHP. Applying Davidson v Chief Constable of North Wales [1994] 2 All ER 597, the fact that the hospital trust’s actions were lawful were not curative of the underlying unlawfulness:

There may be false imprisonment by A although it was B who took the person into custody and B acted lawfully, provided that A directly caused B’s act and that A’s act was done without lawful justification’ [35]

A lawful act by a second act does not prevent the claimant’s detention being a direct consequence of the AMPH’s unlawful act, nor cannot it cure the unlawful nature of the act:

Lawfulness or unlawfulness is an attribute of the conduct of the defendant which caused the claimant’s loss of liberty” [36]

so the fact that the Hospital Trust acted lawfully:

did not clothe the conduct of the AMHP with lawfulness” [54]

The Court considered that the decision in ex p M had been overruled by the Court of Appeal in S-C and applied Sir Thomas Bingham’s reasoning in that case that there was nothing that would enable “a fundamentally defective application to be retrospectively validated”. Section 6(3) simply means the claimant cannot complain of unlawful detention against the hospital managers – it cannot make an unlawful detention lawful.

The Court was unpersuaded by the Local Authority’s argument that because the Hospital Trust was entitled to act as if the AMHP’s application was lawful it followed that TTM’s detention did not contravene his Convention rights and the AMHP had not acted incompatibly with that right.  Such an argument was:

a back to front argument, reminiscent of the world of Alice Through The Looking-glass where things are seen back to front….” [62]

The Court concluded:

it cannot be right, because of the division of responsibility to regard the resulting state detention as consistent with Article 5 when the fundamental cause of the detention was an application made in contravention of the Act” [64]

Consequently, TTM had been unlawfully detained contrary to Article 5 of the ECHR and entitled to compensation.

In regard to the mechanism of achieving compensation, the Court held that the function of  Section 139(1)  to limit the civil liability of the responsible local authority to cases where the act was done in bad faith or without reasonable care could be read down by virtue of Section 3 of the Human Rights Act so as to permit a compensation claim.

In contrast, the Court rejected the submission that Section 6(3) should also be read down as:

S6(3) serves a positive purpose… I accept … that it would be undesirable to weaken s6(3). It is in the public interest that a hospital trust should act promptly on receipt of an application for admission which appears to be in proper form…” [68]

Consequently, TTM had been unlawfully detained as matter of domestic law and under Article 5 and TTM was given leave to pursue compensation against the Local Authority but could not recover against the Hospital Trust.

Section 12(2) of the Act

The Court dismissed the Appellant’s second point of appeal that the Section 3 application had been invalidated as neither medical practitioner had had an acquaintance with TTM when it was “practicable” that a known practitioner advised as required by Section 12(2) of the Act.

.   The Court did not wish to define “practicable” but concluded:

… Parliament must have foreseen that decisions.. under S3 may  be in circumstances of urgency.  And it must have intended that the professionals involved in the process would discharge their responsibilities in a professional way with proper regard for the interests of the patient and of society.  The word “practicable” must have sufficient elasticity to accommodate these considerations” [81].

The court concluded that in the circumstances of the case “it was not unduly stretching the language of Section 12(2)” to conclude that it was not practicable for the application to have been founded on a written recommendation of a medical practitioner who knew TTM.

Lord Justice Toulson further commented [obiter] that:

… I should be surprised if the application had been invalid merely because it was not supported by … a clinician who had previous acquaintance with TTM when his responsible clinician had expressed .. that TTM’s admission was necessary” [95]

Conclusion

This decision substantially expands the liability of local authorities for unlawful detention of mental health patients beyond the previous statutory limits.   A Claimant will no longer have to show that an AMHP has acted in bad faith or without reasonable care to establish a claim in damages for unlawful detention under Article 5 of the ECHR. This will undoubtedly have consequences for local authorities making Section 3 applications, particularly in regards to the procedures and safeguards in place.

The decision is reassuring, however, for hospital authorities.  Hospital authorities will undoubtedly be relieved by the  Court’s acceptance that there are good public interest reasons why a hospital should not have to look behind a prima facie legitimate Section 3 application.  The flexibility to deploy medical practitioners to assess a patient afresh when the clinical circumstances, including differing clinical judgments, require it in the patient’s interest will also be welcome in this difficult area.

Neil Garnham QC and Sydney Chawatama of 1 Crown Office Row appeared for East London NHS Foundation Trust in this case

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

1 comment;


  1. Andrew Muir says:

    My name is andrew muir (andrew.muir@blueyonder.co.uk) . In Scotland, we got a different answer recently. My wife was not detained in accordance with a prodecure prescribed by law but the sheriff dismissed her legal cases since they were timebarred and she had not appealed to the sheriff principal while in hospital

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: